Citation Nr: 1714325
Decision Date: 05/02/17 Archive Date: 05/11/17
DOCKET NO. 12-19 280 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas
THE ISSUES
1. Entitlement to service connection for gastroenteritis.
2. Entitlement to service connection for gastroesophageal reflux disease (GERD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
T. Stephen Eckerman, Counsel
INTRODUCTION
The Veteran served on active duty from October 1973 to April 1983.
This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in pertinent part, denied entitlement to service connection to gastroenteritis and GERD.
The Veteran appealed, and in February 2015, the Board determined that the claim for gastroenteritis (which had previously been denied in a final RO decision, dated in December 2008), was a new and material claim. See 38 C.F.R. § 3.156 (2016). The Board reopened the claim for gastroenteritis, and remanded both claims for additional development.
This appeal was processed using the VBMS and Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.
An application for pension (VA Form 21-527EZ) was received in August 2015, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016).
FINDING OF FACT
The Veteran does not have gastroenteritis, or GERD, that was caused by his service.
CONCLUSION OF LAW
Gastroenteritis, and GERD were not caused by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2016).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran asserts that service connection is warranted for gastroenteritis, and GERD. He asserts that during service, he had to work on a rescue team, and that about half the time he had to eat food that had sat out between 20 minutes and three hours because his duties kept him away from the food service area at his base. He argues that his gastroenteritis started in 1974. He further asserts that in January 2012, during a QTC (VA fee-basis examination), he was told by the examiner that his GERD was caused by his gastroenteritis. See Veteran's letter, dated in March 2012.
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, when "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." See 38 C.F.R. § 3.303(d).
With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)) (to include arthritis). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id.
The Board notes that service connection is currently in effect for disabilities that include an appendectomy scar.
The Veteran's service treatment records show that in June 1974, he was treated for complaints of vomiting and dizziness. The impression was gastroenteritis. In August 1974, he was treated for complaints of a one-day history of vomiting and diarrhea, with a previous episode about 15 days' before. He also reported abdominal pain and tenderness. The impression was gastroenteritis. In November 1975, he was treated for complaints of vomiting and abdominal pain. An abdominal X-ray showed no significant abnormalities. The assessment was abdominal pain. Examination reports, dated in March 1976, and March 1980, show that his abdomen and viscera were clinically evaluated as normal; the March 1980 report notes a 13-centimeter surgical scar in the left inguinal region WHNS (well-healed, non-symptomatic). Between February and March of 1983, he was hospitalized for about 15 days for complaints of a gradual onset of abdominal (right lower quadrant) pain that began the day before, with moderate to severe tenderness to palpation and absent peritoneal signs. He underwent an exploratory laparotomy, and an appendectomy. The operative diagnosis was mesenteric lymphadenitis. A separation examination report is not of record. An undated memorandum, titled "Medical Examination for Voluntary Separation or Retirement" is of record, that appears to have been signed by the Veteran. It indicated that the Veteran elected not to undergo a physical evaluation before separation. Another memorandum (undated) indicates that it was determined that a service health care provider determined that a physical examination was not required prior to separation.
As for the post-service medical evidence, it includes private treatment records from the Del Sol Medical Center, dated in 2001, which show that the Veteran underwent treatment for complaints of a three-day history of abdominal pain, after he was carrying heavy bags. Sections of the report titled "similar symptoms previously" and "recently seen/treated by doctor" are both marked "no." A section of the report title "past history" is marked "negative." The report notes a history of appendectomy, and bilateral inguinal hernia symptoms. The report notes LLQ (left lower quadrant) abdominal pain, and probable abdominal wall strain. An associated CT (computerized tomography) scan notes minor inflammatory appearing changes in the region of the cecum, sigmoid diverticulosis, and that a diagnosis of acute appendicitis could not be made.
A report from a private physician, Dr. A, contains a notation indicating that the Veteran was treated for GERD with Nexium on October 11, 2005. Other treatment reports from Dr. A, dated between 2007 and 2011, show treatment for disorders that included GERD, with medications that included Omeprazole and Prilosec.
A report from Alamo Heart Associates, dated in November 2007, notes treatment for leg symptoms, with a history of disorders that include GERD, and surgery that includes hernia repair, and an appendectomy. The Veteran denied current nausea, vomiting, diarrhea, constipation, and abdominal pain.
A QTC examination report, dated in May 2008, shows that there were no relevant complaints, or diagnoses. On examination, there were no striae on the abdominal wall, distension of superficial veins, ostomy, tenderness to palpation, splenomegaly, ascites, liver enlargement, or aortic aneurysm.
VA progress notes show that the Veteran was treated for GERD beginning in 2009, with medications that included Omeprazole.
A VA stomach and duodenal conditions disability benefits questionnaire (DBQ), dated in February 2012, shows that the examiner, a physician, indicated that the Veteran's claims file had been reviewed. The diagnoses were gastroenteritis, with a date of diagnosis of 1973, and GERD, with a date of diagnosis of 2008. The report notes a history of two episodes of gastroenteritis during service, with typical nausea, vomiting and loose bowel movements. There were no service records to show a stomach disorder. Following service, he was treated by a veteran's clinic (VA) for a long history of GERD, and by a private doctor for all GERD symptoms. The examiner indicated that the claimed condition was less likely as not (less than a 50 percent or greater probability) incurred in, or caused by, service. The examiner explained the following: the Veteran was treated during service for self-limiting episodes of non-specific gastroenteritis of typical features that were not a chronic disease process like GERD, acid reflux, or peptic ulcer disease. The Veteran's future and current symptoms are for an acid reflux problem and not a gastroenteritis disease with vomiting, cramps, and loose stools. The two conditions are not the same.
A VA esophageal conditions (DBQ), and a stomach and duodenal conditions DBQ, both dated in April 2015, show that the DBQs were completed by the same examiner, a physician, who indicated that the Veteran's VBMS file had been reviewed. The Veteran reported a history of nausea, vomiting, crampy abdominal pain, and diarrhea in 1974, for which he sought medical attention, with conservative treatment for gastroenteritis. In 1983, he had severe abdominal pain and underwent an appendectomy; he states that he was told that his appendix was normal, and that he was given a diagnosis of mesenteric lymphadenitis. He reported having ongoing symptoms over the years, and that he was eventually given Prilosec, and Nexium, and that he was currently taking OTC (over-the-counter) Omeprazole bid (twice daily). He complained of current symptoms that included dysphagia, pyrosis, substernal pain, infrequent episodes of epigastric distress, and sleep disturbance caused by esophageal reflux. The examiner summarized the Veteran's service treatment records, and noted the following post-service history: in September 2001, the Veteran was treated for a three-day history of abdominal pain. Private treatment records from Dr. A, dated between 2008 and 2011, document GERD as a chronic ongoing medical condition. VA treatment records dated in February 2009 note evaluation and treatment for GERD. Post-military records were noted to be silent with respect to a diagnosis or management of gastroenteritis.
The diagnoses were GERD, with a date of diagnosis of January 2008, gastroenteritis with mesenteric lymphadenitis resolved with no apparent residuals, with a date of diagnosis of April 2015, and abdominal wall strain, resolved with no apparent residuals, with a date of diagnosis of 2001. The examiner indicated that the claimed conditions are less likely as not (less than a 50 percent or greater probability) incurred in, or caused by, service. The examiner explained the following: although the Veteran had evidence of gastroenteritis in service, there is no objective evidence of evaluation or diagnosis of gastroenteritis in the post-military records, hence the Veteran's gastroenteritis with mesenteric lymphadenitis is resolved, with no apparent residuals. With regard to GERD, the Veteran has been diagnosed with GERD since 2008, about 25 years following separation from service, with ongoing symptoms and pharmacologic treatment. However, service treatment records are silent with respect to a diagnosis of, or treatment for, GERD. Given the length of time between separation from service and a documented diagnosis, this condition is less likely as not caused by, or related to, his service.
The Board parenthetically notes that although abdominal wall strain is not shown during service, the examiner stated that this is a soft-tissue disorder which typically resolves in several weeks to months without residuals or long-lasting sequelae, that there was no evidence of treatment since 2001, and that this condition is not related to service.
As an initial matter, the Veteran has asserted that he had ongoing gastroenteritis, and GERD symptoms, since his service. See e.g., Veteran's statements, dated in October 2010, March and July of 2012. However, the Veteran's service treatment records do not contain any findings, complaints, or diagnoses of GERD. With regard to gastroenteritis, although the Veteran was treated for abdominal symptoms in 1974 and 1975, with diagnoses of gastroenteritis in 1974, there is no subsequent evidence of complaints, treatment, or findings of this disorder. Examination reports, dated in March 1976, and March 1980, show that his abdomen and viscera were clinically evaluated as normal, notwithstanding a 13-centimeter surgical scar in the left inguinal region WHNS. To the extent that he reported having abdominal pain in February 1983, the Veteran underwent an appendectomy associated with these symptoms. There were no findings to show the existence of gastroenteritis or GERD at that time. Upon separation from service, the Veteran elected not to undergo a physical evaluation, and a service health care provider determined that a physical examination was not required. This evidence is inconsistent with his assertions of ongoing symptomatology. Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (holding that in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). The Veteran has asserted that his February 2012 QTC examiner told him that, "In my professional opinion the present condition is in all probability directly caused by the preexisting condition." See Veteran's statement, dated in March 2012. However, this is clearly contrary to that examiner's opinion (discussed supra). Id. The earliest relevant post-service treatment is dated in September 2001, at which time the Veteran complained of a three-day history of abdominal pain, after he was carrying heavy bags. The report indicates that the Veteran reported that he did not have a history of similar symptoms, that he had not recently been seen or treated by doctor, and that he did not have a past history of symptoms. This evidence is inconsistent with his assertions of ongoing symptomatology. Id; see also Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist); AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013). Although there are indications of GERD as early as 2005, the Veteran did not report any relevant history, or current symptoms, during his May 2008 QTC examination. Caluza. The Board therefore finds that the Veteran is not an accurate historian. Id.; Wilson v. Derwinski, 2 Vet. App. 16, 19-20 (1991); Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007).
The Board finds that the claims must be denied. The Veteran was treated for abdominal symptoms in 1974 and 1975, with diagnoses of gastroenteritis in 1974. There is no subsequent evidence of complaints, treatment, or findings of this disorder. Examination reports, dated in March 1976, and March 1980, show that his abdomen and viscera were clinically evaluated as normal, notwithstanding an asymptomatic 13-centimeter surgical scar in the left inguinal region. He was treated for abdominal pain between February and March of 1983, and he underwent an appendectomy associated with these symptoms. There were no findings to show the existence of gastroenteritis or GERD at that time. Upon separation from service, the Veteran elected not to undergo a physical evaluation, and a service health care provider determined that a physical examination was not required. Accordingly, a chronic condition is not shown during service. 38 C.F.R. § 3.303(a), (b).
With regard to the claim for gastroenteritis, the Board finds that the evidence is insufficient to show that the Veteran currently has this disorder. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (under 38 U.S.C.A. §§ 1110 and 1131, an appellant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation). There is no medical evidence dated during the time period on appeal to show that the Veteran has this disability. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). The February 2012 and April 2015 VA DBQs both show that the examiners determined that the Veteran does not have gastroenteritis. These opinions are considered highly probative evidence against the claim, as both of the examiners indicated that the Veteran's files had been reviewed, and as the opinions are accompanied by sufficiently detailed rationales. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); Neives- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, the claim for gastroenteritis must be denied.
With regard to the claim for GERD, the earliest post-service medical evidence of GERD indicates that it was present as of 2005. This is about 21 years after separation from service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lay evidence concerning continuity of symptoms after service is competent, regardless of the lack of contemporaneous medical evidence, only if it is credible). There is no competent opinion in support of the claim. The only competent opinion is found in the April 2015 VA DBQ, and this opinion weighs against the claim. This opinion is considered highly probative evidence against the claim, as the examiner indicated that the Veteran's claims files had been reviewed, and as the opinion is accompanied by a sufficiently detailed rationale. Prejean; Neives- Rodriguez v. Peake. In this regard, although the Veteran has claimed to have had ongoing GERD symptoms since his service, he has been found not to be credible, and the Court has made it clear that lay evidence concerning continuity of symptoms after service is competent, regardless of the lack of contemporaneous medical evidence, only if it is credible. Buchanan. Here, the Veteran's own prior statements provide highly probative evidence against his claim. Finally, and in any event, the Veteran is not shown to have been diagnosed with a disorder listed at 38 C.F.R. § 3.309 (a), and the U.S. Court of Appeals for the Federal Circuit has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic at 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Accordingly, the claim for GERD must be denied.
In summary, the Board finds that the preponderance of the evidence shows that the Veteran does not have gastroenteritis, or GERD, due to his service, and that the claims must be denied.
With regard to the appellant's own contentions, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the Veteran has been found not to be credible, and lay evidence concerning continuity of symptoms after service is not competent unless it is credible. Buchanan. The Veteran's service treatment reports and the post-service medical records have been discussed. Gastroenteritis is not currently shown. GERD is not shown during service, or for many years after separation from service. Given the foregoing, the Board finds that the medical evidence outweighs the appellant's contentions to the effect that he has the claimed conditions due to his service. Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997).
As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).
Duties to Notify and Assist
There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015).
Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C.A. § 5103A (c)(2). All records pertaining to the disability in issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159 (c)(3)). In this case, the Veteran has not identified any such records, and it appears that all pertinent records have been obtained. In this regard, in October 2011, the Vista Verde Medical Center stated that the Veteran had never been treated at their facility. The Veteran has been afforded examinations. Gastroenteritis is not currently shown. With regard to the claim for GERD, an etiological opinion has been obtained.
Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).
ORDER
Service connection for gastroenteritis, and GERD, is denied.
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KELL A. KORDICH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs